R. B. Rodriguez v. PA Board of Probation and Parole (Majority Opinion)
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IN THE COMMONWEALTH COURT OF PENNSYLVANIA Ricardo B. Rodriguez, Petitioner : : : v. : No. 2154 C.D. 2007 : Submitted: April 25, 2008 Pennsylvania Board of Probation and : Parole, : Respondent : BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, President Judge HONORABLE DAN PELLEGRINI, Judge HONORABLE MARY HANNAH LEAVITT, Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE PELLEGRINI FILED: May 28, 2008 Ricardo B. Rodriguez (Rodriguez) petitions for review of the order of the Pennsylvania Board of Probation and Parole (Board) that denied his application for administrative relief from the Board s order recommitting him as a technical and convicted parole violator. Rodriguez argues that this Court should reverse the Board s decision to deny his administrative appeal because it failed to hold a timely parole revocation hearing.1 1 Counsel in this case seeks to withdraw representation because he submits that the issues raised on appeal by Rodriguez are frivolous and without merit. Rodriguez filed a Motion to Object to Counsel s Leave to Withdraw Appearance. In Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988), our Supreme Court set forth the procedures to be followed when counsel seeks to withdraw representation because issues raised by the petitioner are frivolous. This Court has interpreted Turner to require counsel to file a no-merit letter containing the following: (1) the (Footnote continued on next page ¦) Rodriguez is incarcerated at the State Correctional Institution (SCI) at Somerset. Rodriguez was originally sentenced on May 30, 1995, in Philadelphia County to serve five to 10 years for voluntary manslaughter. On February 7, 2000, the Board released Rodriguez on parole. On October 20, 2003, Rodriguez was found guilty of a felony and a misdemeanor in the Commonwealth of Virginia, and on April 2, 2004, he was sentenced to serve 11 years in prison. On March 12, 2007, Rodriguez signed a waiver of extradition allowing him to be returned to Pennsylvania. By letter dated, March 13, 2007, the Commonwealth of Virginia informed the Board that Rodriguez was being released to the Board s detainer on March 21, 2007. The Board returned Rodriguez to SCI Graterford on March 22, 2007. On July 20, 2007, the Board held a revocation hearing. At the hearing, Rodriguez submitted a motion to dismiss in which he asserted that the Board failed to (continued ¦) nature and extent of counsel s review; (2) the issues that the petitioner wishes to raise; and (3) counsel s analysis in concluding that the petitioner s appeal is frivolous. Vandermark v. Pennsylvania Board of Probation and Parole, 685 A.2d 628 (Pa. Cmwlth. 1996). These requirements must be satisfied by court-appointed counsel before the court will consider any request by counsel to withdraw an appearance on behalf of an individual under the jurisdiction of the Board. Hont v. Pennsylvania Board of Probation and Parole, 680 A.2d 47 (Pa. Cmwlth. 1996). In reviewing a petition to withdraw, this Court must make an independent evaluation of the proceedings before the Board to determine whether the petitioner s appeal is wholly frivolous. Strothers v. Pennsylvania Board of Probation and Parole, 554 A.2d 1017 (Pa. Cmwlth. 1989). In his letter, Counsel asserts that Rodriguez s appeal of the Board s finding is without merit and lacks support in either law or fact because under 37 Pa. Code §71.4, the 120-day period commences when the prisoner has been transferred to a state correctional institution. We agree and find that Counsel s correspondence to this Court meets the standard enumerated in Turner. Rodriguez has filed his own brief to which the Board has responded. 2 hold a hearing within the 120-day period mandated by 37 Pa. Code §71.41 and that the period should have been calculated from March 13, 2007, the date he waived extradition. The Board revoked his parole, recommitting him to serve consecutive sentences of six months backtime as a technical parole violator and 12 months backtime as a convicted parole violator. Rodriguez then filed an administrative appeal of the Board s decision contending that the hearing was not held within 120 days. The Board denied his request for administrative relief, and this appeal followed.2 In his amended petition for review, Rodriguez contends that the Board erred in finding that it had provided him with a timely revocation hearing.3 37 Pa. Code §71.4 (1)(i), provides, in relevant part: (1) A revocation hearing shall be held within 120 days from the date the Board received official verification of the plea of guilty or nolo contendere or of the guilty verdict at the highest trial court level except as follows: (i) If a parolee is confined outside the jurisdiction of the Department of Corrections, such as confinement out-ofState, confinement in a Federal correctional institution or confinement in a county correctional institution where the parolee has not waived the right to a revocation hearing by a panel in accordance with Commonwealth ex rel. Rambeau 2 Our scope of review is limited to determining whether the Board made necessary findings unsupported by substantial evidence, committed an error of law or violated any constitutional rights. Morgan v. Pennsylvania Board of Probation and Parole, 814 A.2d 300 (Pa. Cmwlth. 2003). 3 When a parolee alleges that the [B]oard held a revocation hearing beyond the 120-day period ..., the [B]oard bears the burden of proving, by a preponderance of the evidence, that a timely revocation hearing was held. Saunders v. Pennsylvania Board of Probation and Parole, 568 A.2d 1370, 1371 (Pa. Cmwlth. 1990). 3 v. Rundle, 455 Pa. 8, 314 A.2d 842 (1973), the revocation hearing shall be held within 120 days of the official verification of the return of the parolee to a State correctional facility. Rodriguez first asserts that his hearing on July 20, 2007, was untimely due to the fact that it was held 130 days after he signed the extradition waiver on March 12, 2007. Because Rodriguez was outside the jurisdiction of the Pennsylvania Department of Corrections, under the regulation a revocation hearing is required to be held within 120 days from the official verification of the parolee to a state correctional facility, which in this case is March 22, 2007. In the alternative, Rodriguez asserts that the hearing was not held within 120 days from March 22, 2007, because the actual date of a prisoner s return to a correctional facility must be calculated as the first day of the 120-day time period, which would mean that his hearing occurred on the 121st day. 1 Pa. Code § 31.1 sets forth how days are to be counted for time periods in regulations. It provides in computing a period of time prescribed or allowed . . . regulations of the agency . . . ., the day of the act, event or default after which the designated period of time begins to run may not be included, . . . . The last day of the period so computed shall be included, unless it is Saturday, Sunday or a legal holiday in this Commonwealth, in which event the period shall run until the end of the next day which is neither a Saturday, Sunday nor a holiday. 4 See also Fulton v. Pennsylvania Board of Probation and Parole, 663 A.2d 865 (Pa. Cmwlth. 1995) (holding that a parole 4 Section 1908 of the Statutory Construction Act, 1 Pa. C.S. §1908, counts days in statutes in the same manner. It provides: When any period of time is referred to in any statute, such period in all cases, . . . shall be so computed as to exclude the first and include the last day of such period[.] 4 violation hearing must be held within 120 days after parolee's return to Pennsylvania to be timely). Calculating the time in accordance with the regulation, Rodriguez s July 20, 2007 revocation hearing was held on the 120th day after Rodriguez s return to state custody making it timely. Accordingly, the order of the Board denying Rodriguez s administrative appeal is affirmed. DAN PELLEGRINI, JUDGE 5 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Ricardo B. Rodriguez, Petitioner : : : v. : No. 2154 C.D. 2007 : Pennsylvania Board of Probation and : Parole, : Respondent : ORDER AND NOW, this 28th day of May, 2008, the Pennsylvania Board of Probation and Parole s decision, dated November 7, 2007, is hereby affirmed, and Attorney Robert Feller Morocco s application for leave to withdraw as counsel of record is granted. DAN PELLEGRINI, JUDGE
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